Appeals Court Overturns Order That Had Blocked Trump From Deploying Troops in Portland

A federal appeals court panel on Monday afternoon overturned a lower court’s order that had blocked the Trump administration from deploying the military in Portland.

Though one judge offered a strenuous dissent, a 2-1 majority on a 9th U.S. Circuit Court of Appeals panel determined that in federalizing Oregon National Guard members for the mission, President Donald Trump appeared to be in compliance with a U.S. law permitting such an action when “the President is unable with the regular forces to execute the laws of the United States.”

Evaluating whether such conditions are met is “inherently subjective,” wrote the majority judges on the panel, Ryan Nelson and Bridget Bade. But they argued that U.S. District Judge Karin Immergut had erred in failing to defer sufficiently to the president’s assessment of the situation on the ground in Portland.

“Rather than reviewing the President’s determination with great deference, the district court substituted its own determination of the relevant facts and circumstances,” the judges wrote, criticizing the lower court order they were overturning.

What real world effect the majority’s new order will have was not immediately clear. The dissenting judge said it would not have an immediate practical effect given the active status of a second court order blocking the deployment. And Gov. Tina Kotek told reporters Monday afternoon that while that second order remains active, neither Oregon or California National Guard members federalized for the mission—who remain in “limbo” at two bases outside of Portland—can be deployed to Portland.

Still, the majority on the 9th Circuit panel pointed out that this second order blocking the deployment was based on similar reasoning as the one that they rejected, suggesting that Immergut, the lower court judge, may be obliged to dissolve that one too.

In any event, the court battle, which is set to proceed under Immergut’s supervision in Portland, is likely far from over, and the core legal questions remain highly contentious.

“Today’s ruling, if allowed to stand, would give the president unilateral power to put Oregon soldiers on our streets with almost no justification,” said Oregon Attorney General Dan Rayfield in a statement. “We are on a dangerous path in America.”

He urged the broader 9th Circuit Court of Appeals to consider the case “en banc”—which is when a larger group of judges review a case together. Rayfield was echoing the written opinion of Judge Susan Graber, the lone dissenter on the three judge panel, who urged her colleagues on the broader court “to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur.”

At least one colleague appeared Monday to be mulling this request. Shortly after the panel’s order was published, an appellate judge who was not a member of the panel requested a vote on whether the court should hear the case en banc, and asked the parties to submit legal briefs by Wednesday.

For now though, the majority’s order is the latest twist in a winding and high-stakes legal dispute over when the military can be deployed into U.S. cities—and what deference courts should give the president to make that judgment.

Trump and his backers say he needs the National Guard to maintain order in Portland amid persistent protests outside a U.S. Immigration and Customs Enforcement facility in the city.

Critics, like the Oregon governor and the Portland mayor, say the Trump administration is creating fantastical pretexts to bring in the guard to harass and bully Democrat-run jurisdictions.

Early this month, Immergut sided with those critics. She assessed the record of generally small protests outside the ICE facility, and seriously doubted it gave Trump legal justification for a military deployment.

On Monday though, the majority of the appeals court disagreed. The judges were moved by federal officials’ statements that they had to divert significant law enforcement resources to Portland amid the protests. And they argued the lower court had improperly focused on the nature of the protests in the days and weeks leading up to Trump’s announcement that he would federalize the National Guard, discounting “the violent and disruptive events that occurred in June, July, and August.”

The lower court judge, the majority wrote, should have given more deference to the president’s judgments as to whether he can not with regular forces execute U.S. law.

The law in question, they wrote, “delegates the authority to make that determination to the President and does not limit the facts and circumstances that the President may consider in doing so.”

Graber, the dissenting judge and a former Portland resident herself, saw things differently. “Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd,” the judge wrote in her dissent. “But today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions.”

Versions of this fight have been boiling nationwide for months now. Despite local opposition, the Trump administration earlier this year sent troops to Los Angeles and Washington, D.C.

Focus turned to Portland late last month, when Trump said he would deploy 200 Oregon National Guard members to restore order to a lost city, whose citizenry was allegedly besieged by criminal elements and Antifa domestic terrorists.

Suing to block the move, Oregon and Portland officials said the president was acting on the basis of a ridiculous fiction. The law the Trump administration had invoked said he could take command of state national guard troops in circumstances of invasion or rebellion, or when federal laws cannot otherwise be executed. Oregon leaders argued that the small-scale protests that have ebbed and waned since June outside the U.S. Immigration and Customs Facility in south Portland clearly met none of those conditions.

Immergut’s opinion in Oregon’s favor included a lengthy factual record of recent events outside the ICE facility. Protests in June indeed featured violent behavior, the judge found, but in recent months, demonstrations were generally peaceful and small, easily managed by law enforcement. Assessing various reports, she found that, despite the Trump administration’s claims of chaos in the weeks leading up to his move to send troops to pacify Portland, in reality not much during that period had happened there at all.

The president, Immergut wrote, “is certainly entitled ‘a great level of deference,’ in his determination that he ‘is unable with the regular forces to execute the laws of the United States. But ‘a great level of deference’ is not equivalent to ignoring the facts on the ground.”

With this, she issued a temporary restraining order blocking the Trump-directed Oregon National Guard mission while litigation proceeded.

But the Trump administration had other plans.

One of these was to swiftly deploy National Guard troops from other states to Portland. Less than 24 hours after the first restraining order kicked in, the Oregon governor reported that federalized troops from the California National Guard had arrived in the state without her consent (or that of the California governor). Soon after came the news that the Texas National Guard was planning to come as well.

Immergut was displeased. The Trump administration, she said in an emergency hearing late Sunday, was operating in direct contravention of her earlier order. The judge then issued the second, wider restraining order, blocking troops from other states from coming to Oregon too.

Meanwhile, the Trump administration awaited its pending appeal with a higher court. The appeals court heard oral arguments on Oct. 9 over Zoom. An attorney for Oregon and the Trump administration each presented to a three judge-panel, who in turn peppered them with questions.

The hearing featured no mention of a notable wrinkle: the argument made by the City of Portland and others that physically aggressive federal agents were in many cases making the situation more, not less combustible—and that the arrival of military was likely to make things worse.

Kotek herself underscored this point in her news conference Monday, shortly after the order came down. “Federal agents on the ground are essentially instigating conflict with folks who are lawfully protesting,” she said.

Nonetheless, the appeals court judges have been more focused on a separate matter: The question of whether the protesters have in recent weeks and months rendered the Trump administration unable to enforce federal law.

Comments during oral arguments from the two Trump-appointed judges, Nelson and Bade, seemed to suggest they though the president had a solid case on this front, especially if they expanded their lens back to June, when the protests were so violent and disruptive that officials said they had to temporarily close the ICE facility entirely.

Then there was a headier question: Were courts in a position to question Trump’s military judgments at all?

A skeptical Judge Nelson told Oregon’s Assistant Attorney General Stacy Marie Chaffin that she seemed to want to focus on what’s going on with the protests outside—whether they rose to a certain level.

But this, the judge suggested, was perhaps the wrong lens. Whether protests are making it so the president can’t enforce federal law was a matter, the judge said, of “internal decision making.” He added that, “Whether there is a ton of protest or low protest—they can still have an impact on his ability to execute the laws.”